Thursday, April 21, 2016
Someone asked me recently about "alternatives" for law students interested in helping older persons or disabled adults. I said, in essence, "figure out how to start and operate a cost-effective, soundly-managed, and reliable, nonprofit rep-payee organization in your community." (And understand that you won't make a fortune, but you can make a good living with a well-run nonprofit!)
In "Ways to Meet the Growing Need for Representative Payees," Justice in Aging recommends that the Social Security System partner with organizations, including attorney organizations, to establish a "sustainable program to help recruit representative payees who are reliable and suitable to perform all of the required duties" of a rep-payee for those receiving federal program benefits but who often are unable to manage the money soundly. In some instances they may have no easy access to reliable family or friends. The "unbefriended," who, in turn, may be vulnerable to those with bad intentions:
Aging demographics and the predicted increase in cognitive deficits and other chronic conditions are expected to create a dramatic need for representative payees. For many of these seniors, family members and friends may be unavailable to serve in this capacity. SSA should think broadly about the groups of people eligible to serve as payees and then create standards for appointment, require a more in-depth level of training, and increased accountability.
Justice in Aging closes by urging that SSA's "recruitment efforts should be geared towards eligible individuals with legal experience as well as other fields with relevant backgrounds, such as social workers and religious community leaders."
Monday, April 18, 2016
Pennsylvania lawmakers seem to be on a roll this month, following several months of log jam over the 2015-16 state budget. The legislature passed SB 879 on April 13, and Pennsylvania Governor Wolf has now signed the law, enabling creation of tax-exempt savings accounts to benefit people with qualified disabilities. From the Governor's Office:
The accounts can be used for a wide-range of disability-related expenses including health care, housing, and transportation without jeopardizing eligibility for important programs on which individuals with disabilities must often depend.
“My administration is committed to promoting and encouraging independence, community-based supports and services, and employment for individuals with a disability,” said Governor Wolf. “Pennsylvanians with disabilities can now achieve greater fiscal self-sufficiency, without the risk of impacting their eligibility for benefits. I am proud to sign this bill today and continue our work to help individuals with disabilities stay in their homes and communities.”
U.S. Senator Bob Casey led efforts to win Congressional passage of the federal ABLE Act, which authorized states to establish tax-exempt savings accounts modeled on section 529 of the Internal Revenue Code, which recognizes state-established savings programs to meet future college expenses. Pennsylvania Treasury has been administering the Pennsylvania 529 program since 1993 and will administer the ABLE Program.
From NDSS's list of states with "ABLE Legislation," it can be seen that Pennsylvania's action makes it approximately the 41st in the nation to "enable" Able. Over the weekend, Pennsylvania also became the 24th state to legalize medical marijuana.
A helpful summary of the use of ABLE accounts, along with other tools that may assist a broader range of ages, including special needs accounts, is provided by Pennsylvania Elder Law guru, Jeff Marshall, here.
Friday, March 11, 2016
From the most recent issue (issue No. 3) of Bifocal, the electronic journal published by the ABA Commission on Law and Aging, links to several interesting feature articles:
When lapses in memory or physical issues start to affect activities of a loved one's daily living, such as cooking, eating, bathing, or paying bills, it's time to evaluate their needs and living situation. As the affected loved one's care needs increase, attorneys can assist with drafting caregiving/personal care agreements.
To ensure that all beneficiaries can receive their payments and make proper use of funds, Congress has granted the Social Security Administration (SSA) the authority to appoint third parties, known as representative payees, to receive and manage payments when the beneficiary is unable to do so. With Alzheimer's disease and other cognitive impairments on the rise, more seniors find themselves unable to manage their own benefits. SSA is currently exploring additional ways to identify seniors who may be in need of a representative payee. When working with seniors or caring for loved ones, please be aware of the following information about the rep payee program to help identify seniors in need.
Emeritus pro bono practice rules can be effective tools for recruiting volunteer attorneys. Specifically, by reducing some of the licensing burdens for attorneys who agree to limit practice to pro bono only, these rules are designed to encourage pro bono service. Whether these rules are actually effective in encouraging pro bono service, however, is an empirical question. To answer that question, a short online survey was done in 2014 returning modest data. In 2015 the ABA Standing Committee on Pro Bono and Public Service--in collaboration with the ABA Commission on Law and Aging--launched a project to collect more complete data on participation, the number of hours, and what recruitment methods appear to be most successful.
Tuesday, February 9, 2016
We have posted several times on how much one needs for retirement and whether folks are saving enough to have a financially secure retirement. An article in the Washington Post on January 12, 2016 features a new report from Fidelity Investments that shows savers need to get much more aggressive with saving for a financially secure retirement. How big your retirement fund should be at every age, according to one guide explains that Fidelity revised its guidelines at the end of last year using a more conservative return rate. Here is an example of their recommendation:
people save one times their salary by their 30th birthday. By the time they’re 35, savings should add up to double their annual pay. By 40, a retirement account should hold three times a person’s salary. The numbers keep growing, all the way to age 67, by which retirement savings should add up to 10 times a person’s pay.
The article notes that this guide may seem aggressive and intimidating to some, but emphasizes that it is just one guideline, and if nothing else, should be the catalyst to get people saving for retirement. Get out that piggy bank.....
Monday, February 8, 2016
Yes, another Social Security Scam is making the rounds. The AARP Fraud Watch Network alerted folks about a new scam that the FTC has discovered. According to the Fraud Watch explanation, people are being sent
an email with the subject line “Get Protected.” ... The email describes that the Social Security Administration (SSA) is supposedly offering great new features to help taxpayers protect their personal information and identities. It sounds so good that you may be tempted to click on the link provided — [don't do so] ...It’s a SCAM!
The scammers pose as SSA employees and to be even more authenticate-sounding, may even mention the “SAFE Act of 2015.” Of course, the email includes a link, and we all know what happens when one clicks on a link in a scam email....bad things.
Sunday, January 31, 2016
The Social Security Administration posted on its blog about a Social Security scam involving phishing. According to the post, the scam focuses on "protecting" yourself from identity theft and financial fraud. "The subject line says “Get Protected,” and the email talks about new features from the Social Security Administration (SSA) that can help taxpayers monitor their credit reports, and know about unauthorized use of their Social Security number. It even cites the IRS and the official-sounding “S.A.F.E Act 2015.” It sounds real, but it’s all made up." The post offers a couple of tips to suss out a scam. If the email ended up in your junk folder, it could be a scam. Also, mouse over the URL and see if it is really from SSA, or from a .com site instead.
Always remember-if in doubt, don't click on the link and don't provide personal information.
Wednesday, January 20, 2016
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, January 15, 2016
Recently, several attorneys pointed me to an interesting report on "Marital Biography, Social Security Receipt and Poverty," by sociology researchers at Bowling Green State University. The abstract explains:
Increasingly, older adults are unmarried, which could mean a larger share is at risk of economic disadvantage. Using data from the 2010 Health and Retirement Study, we chart the diverse range of marital biographies, capturing marital sequences and timing, of adults who are age eligible for Social Security and examine three indicators of economic well-being: Social Security receipt, Social Security benefit levels, and poverty status. . . . Among singles, economic well-being varies by marital biography and gender. Gray divorced and never-married women face considerable economic insecurity.
From the body of body of the study more information emerges about the phenomenon of "gray divorce," those occurring after age 50, which has "doubled since 1990 even though the overall U.S. divorce rate remains stable." The authors continue (with citations omitted here):
The timing of marital dissolution in the adult life course may have implications for postdivorce adjustment, including late life economic well-being. Divorce tends to be more normative at younger ages whereas widowhood becomes increasingly likely with age. From a life course perspective, the timing of an event can magnify or reduce its influence on well-being. Off-time events are associated with poorer outcomes than on-time events. Thus, divorce prior to age 50 may be less detrimental to economic well-being than divorce after age 50. Those who divorce earlier in adulthood have more time to recoup the financial losses divorce usually entails. In contrast, those who divorce later have fewer years of working life remaining and may not be able to fully recover economically from a gray divorce. Indeed, gray divorce appears to diminish wealth more than an earlier divorce. Similarly, widowhood prior to age 50 is an off-time event that is not a normative life course experience. Young widows are more likely to become poor compared with older widows. Couples tend to be overly optimistic about the likelihood they both will survive to an old age. Thus they may not have adequately planned for this unlikely possibility and ultimately may be less able to recover fully.
Ultimately, from their research it appears that comparatively higher rates of poverty are associated with unmarried status as you age, but, particularly for women, late-in-life divorce may further increase the likelihood of poverty.
Wednesday, January 6, 2016
SI 01130.740 Achieving a Better Life Experience (ABLE) Accounts was released December 18, 2015. The POMS has six sections, including an explanation of ABLE accounts, definitions, what is excluded, what is countable, and verification/documentation of the account balances and of the distributions. Check it out! Oh and by the way, it's a good time to explain the POMS to your students. Check out SSA's explanation of the POMS on the POMS home page here.
Sunday, December 20, 2015
Back in October, as part of the Bipartisan Budget Act, Congress eliminated a couple of Social Security claiming strategies (§ 831) that have been getting a lot of press (one is known as "file and suspend", the other, "restricted application"). The New York Times ran an article on December 4, 2015 discussing these strategies that are being eliminated and what options remain for individuals planning for their retirement. The End of Social Security Loopholes: What Now? examines the role of life expectancy in deciding when to start collecting Social Security retirement benefits. But, "[f]iguring out the best strategy is difficult because few retirees know how long they will live." The article discusses the variables that go into deciding which strategy is best and notes that these are not "one size fits all" decisions.
The Washington Post also ran an article about the elimination of these two claiming strategies and what that means for individuals planning for their retirement. As one Social Security strategy disappears, consider other smart options focuses on the elimination of the file and suspend strategy and offers 4 tips, including obtaining advice and preparing a budget.
Wednesday, November 11, 2015
I was reading a recent article in the New York Times on estimating longevity in the context of the Social Security Trust Fund. Your Kids Will Live Longer Than You Thought ran in the NY Times on November 10, 2015. The article discusses statistics and probabilities, explaining how life expectancies are calculated. Looking at the Social Security projections of life expectancy, the article notes that SSA is likely too conservative in their longevity projections.
The Technical Panel on Assumptions and Methods established by the Social Security Advisory Board, an independent government agency that advises Social Security’s trustees on matters including actuarial assumptions, says Social Security is systematically underestimating future declines in mortality rates, and therefore underestimating the likely life spans of young Americans.
So this is a good news-bad news scenario. Good news for those who get more years of life, bad news for Social Security. "[O]ne quirk of Social Security is that a piece of obvious good news (People will live longer than we thought!) is bad news from the narrow perspective of paying for retirement benefits (The government will have to pay benefits longer!)." So how to handle Social Security's too conservative projections? The Congressional Budget Office "tweaked" them by increasing them.
Wednesday, October 14, 2015
I'm always playing catch-up on my "must read" list, but fortunately, others keep me on task. One such article is Florida State Medicine and Law Professor Marshall Kapp's piece, inspired in part by Hendrik Hartog's 2012 book, Someday All This Will Be Yours.
In For Love, Legacy, Or Pay: Legal and Pecuniary Aspects of Family Caregiving, published by the Springer Journals of Case Management, Professor Kapp begins with this overview and note of caution about legal planning:
Most caregiving and companionship provided by family members and friends to elder individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment. From a legal perspective, though, it might be ill-advised for an informal caregiver to admit to such a motivation.
He advises consideration of personal service or personal service agreements, explaining:
We must reject an analytically attractive and pure, but never really socially realistic, tendency to dichotomize the caregiver experience, recognizing instead that a person may simultaneously be both a family member, with the related emotional and ethical connotations of that label, and a business employee. Morality and materiality are not incompatible. Caregiving can be both an act of love and a marketable commodity bought and sold between non-strangers.
As Professor Kapp points out, if we as a society really wanted to encourage family caregiving without all too vague promises about future inheritances, we could go beyond mere tax credits and "instead use public funds to pay family caregivers directly."
It's that time of year...CMS releasing the 2016 figures for Medicare. For some beneficiaries, the amount of their Part B premiums and deductibles is going to be a big OUCH! The New York Times ran an editorial on October 10, 2015 on how the premiums and deductibles are calculated and what it means for some beneficiaries in 2016. The Unlucky Millions Paying More for Medicare explains
Under a 1997 law, premium payments must cover 25 percent of the projected per capita costs for Part B. The premiums, which can rise and fall from year to year, are usually deducted from beneficiaries’ Social Security payments each month. A “hold harmless” provision guarantees that for most people the dollar amount of a premium increase cannot be so big that they are left with a Social Security check that is less than that of the year before. The goal is to ensure that beneficiaries, most of whom have modest incomes, don’t have less money to live on.
Since there will be no Social Security COLA for 2016 but Part B premiums are set to rise, the impact is going to hit hard a certain group of beneficiaries:
The roughly 70 percent of beneficiaries who are “held harmless” will pay the same premium as last year. That means the increased cost will have to be made up by the other 30 percent, because of the rule that premiums must cover one-quarter of Part B costs. This group includes 2.8 million new enrollees, 1.6 million people who don’t collect Social Security benefits and 3.1 million higher-income beneficiaries.
How big a hit will this group take? A pretty big one. Consider this in dollar amounts.
The Part B premium has been just under $105 a month for three years, but it is projected to reach $159 in 2016 and then drop to $120 in 2017.
Similarly, the Part B deductible, which must be paid by everyone on Medicare (no one is “held harmless”), will rise from $147 in 2015 to $223 in 2016, before falling back to $169 in 2017. This will pose a particular burden to beneficiaries just above the poverty line who aren’t eligible for assistance from Medicaid in paying deductibles.
The editorial calls for action by Congress to resolve the way premiums are determined. But for now, OUCH!
Monday, October 12, 2015
The Senate Special Committee on Aging held a hearing on October 7, 2015. The subject of the hearing was Protecting Seniors from Identity Theft: Is the Federal Government Doing Enough?”
Witnesses included a representative of the Senior Medicare Patrol, HHS, CMS and the Electronic Privacy Information Center (EPIC). Individual witness' testimony is available for download as a pdf. A video of the hearing is available here. The EPIC witness testified concerning identify theft related to Social Security Numbers. A press release about his testimony is available from the EPIC website here.
Friday, October 9, 2015
In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.
This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is. We were talking about his research-based observation in the book about adult children and needy parents:
Adult children were not legally bound to remain and to work for their parents. Nor were they obligated to care for the old. Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.
I asked, "what about filial support laws?" Turns out that was a timely question because Professor Hartog had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015. In the interview Professor Hartog was asked to comment on filial support laws. He said in part:
Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced. Very, very, very, very rarely. So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers.
Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s. And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits. But...
I think the modern story is quite different in at least one state -- Pennsylvania. Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era. Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.
Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany.
Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.
This seems a more realistic paradigm, although not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.
October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, October 1, 2015
The National Academies Press has issued a new report, The Growing Gap in Life Expectancy by Income: Implications for Federal Programs and Policy Responses. Here is a description from the book
he U.S. population is aging. Social Security projections suggest that between 2013 and 2050, the population aged 65 and over will almost double, from 45 million to 86 million. One key driver of population aging is ongoing increases in life expectancy. Average U.S. life expectancy was 67 years for males and 73 years for females five decades ago; the averages are now 76 and 81, respectively. It has long been the case that better-educated, higher-income people enjoy longer life expectancies than less-educated, lower-income people. The causes include early life conditions, behavioral factors (such as nutrition, exercise, and smoking behaviors), stress, and access to health care services, all of which can vary across education and income.
Our major entitlement programs ? Medicare, Medicaid, Social Security, and Supplemental Security Income ? have come to deliver disproportionately larger lifetime benefits to higher-income people because, on average, they are increasingly collecting those benefits over more years than others. This report studies the impact the growing gap in life expectancy has on the present value of lifetime benefits that people with higher or lower earnings will receive from major entitlement programs. The analysis presented in The Growing Gap in Life Expectancy by Income goes beyond an examination of the existing literature by providing the first comprehensive estimates of how lifetime benefits are affected by the changing distribution of life expectancy. The report also explores, from a lifetime benefit perspective, how the growing gap in longevity affects traditional policy analyses of reforms to the nation?s leading entitlement programs. This in-depth analysis of the economic impacts of the longevity gap will inform debate and assist decision makers, economists, and researchers.
You can download the report as a pdf for free, read the report online, or purchase a hard copy of the report for $64. Click here for more information.
Wednesday, September 30, 2015
The Center for Elder Rights Advocacy (CERA) has announced their upcoming webinar on October 8th, 2015. The webinar, Social Security Fraud, Similar Fault & Penalties will take place from 2 - 3:30 p.m. eastern. According to the website
CERA presents a webinar regarding the issue of clients reporting an overpayment involving allegations by Social Security of “fraud or similar fault.” These cases present unique challenges for the hotline attorney. Social Security’s rules on overpayments differ when Social Security finds that the overpayment resulted from “fraud or similar fault.” Normal due process rules for overpayments do not apply, and Social Security can assess additional financial penalties when an administrative determination is made that “fraud or similar fault” is applicable. This webinar will address ways to advise clients who receive a notice from Social Security alleging an overpayment involving “fraud and similar fault,” or who have an overpayment on their record with such a determination. The webinar is particularly directed toward legal hotline advocates and managers.
This webinar addresses:
A review of rules applicable to “fraud and similar fault” findings.
A discussion of differences in normal overpayment collection cases vs. fraud cases.
Giving competent advice to clients faced with an overpayment arising from fraud or similar fault.
To register, click here.
Tuesday, September 15, 2015
As we have tracked recently on this Blog, in a number of states, including Florida and Nevada, serious questions have been raised about the roles of guardians for disabled and elderly persons, and the extent to which there should be public oversight of guardians, especially "paid" guardians, including public guardians, "professional" guardians or "private" guardians.
In Florida, newly proposed legislation, Senate Bill 232 (filed in September 2015) would seek to clarify state oversight of all guardians, following on the heels of amendments to Florida state law enacted in mid-2015. Florida's legislature may take up the latest bill early in 2016, according to media reports. Key provisions in the bill include:
- renaming of the current office of "public guardianships," with expanded duties and responsibilities, to create the "Office of Public and Professional Guardians;"
- addition of findings about the potential need for a "public guardian" where there is "no willing and responsible family member or friend, other person, bank, or corporation available to serve;"
- a requirement that "professional" guardians "shall" register with the state;
- directions to establish a comprehensive system for receipt and state action on complaints made about professional guardians.
From reading SB 232, it seems to me there may be some attempt to appease the concerns about the potential for overregulation of so-called "professional" guardians, as new language in Section 744.2001 requires development and implementation of a new "monitoring tool to ensure compliance of professional guardians with standards" set by the Office, but this "monitoring tool may not include a financial audit " as specified in another section of the law (emphasis added).
Funding will be needed to make expanded oversight effective.
September 15, 2015 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, August 31, 2015
The Pew Research Center on August 18, 2015 released the FactTank 5 facts about Social Security (the FactTank is "[r]eal-time analysis and news about data from Pew Research writers and social scientists."). So what are those 5 facts? Here you go!
Social Security touches more people than just about any other federal program.
Social Security is, and always has been, an inter-generational transfer of wealth.
Right now, Social Security has plenty of assets.
But since 2010, Social Security’s cash expenses have exceeded its cash receipts.
Social Security’s combined reserves likely will be fully depleted by 2034....
Sunday, August 16, 2015
The National Aging & Law Conference is scheduled for October 29-30, 2015 at the Hilton Arlington, Arlington, VA. A number of ABA commissions and divisions are sponsors of this conference including the Commission on Legal Problems of the Elderly, the Coordinating Committee on Veterans Benefits & Services, the Senior Lawyers Division and the Real Property, Trust & Estate Law Section. The website describes the conference
The 2015 National Aging and Law Conference (NALC) will bring together substantive law, policy, and legal service development and delivery practitioners from across the country. The program will include sessions on Medicare, Medicaid, guardianship, elder abuse, legal ethics, legal service program development and delivery, consumer law, income security, and other issues.
The 2015 National Aging and Law Conference marks the second year that this conference has been hosted by the American Bar Association. This year’s agenda will include 24 workshops and 4 plenary sessions on key topics in health care, income security, elder abuse, alternatives to guardianship, consumer law, and legal service development and delivery. The focus of the agenda is on issues impacting law to moderate income Americans age 60 and over and the front line advocates that serve them.
August 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Programs/CLEs, Social Security, Veterans | Permalink | Comments (0)